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private mooring fees?


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5 minutes ago, Cheese said:

They can write whatever they like in their T&Cs, and (given that their customers accept them) unless/until some terms are ruled "unfair" by a court, they are sustainable under contract law.  It is no different to saying things like "no dogs" (or "dogs mandatory").

 

Yes, those terms are primarily in pursuit of a business proposition.  But that is what business is all about - coming up with T&Cs that are of mutual business to both business and customer.  Potential customers who don't like the terms of a particular business go elsewhere.

 

So does CRT, in their T&Cs, but I've never noticed a shortage of threads discussing their legality. 

 

 

 

6 minutes ago, tree monkey said:

If the marina refuses to comply with its contractual obligations CRT can close off access to the canal.

 

Well, one law governing the requirement of a licence will have to test the other law that can't govern the requirement of a licence. 

 

 

Edited by Higgs
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38 minutes ago, Higgs said:

 

Even if it contravenes statutory requirements? 

 

I don't think CRT could get away with prosecuting the marina for allowing unlicensed boats into the marina. What are CRT going to say - "but, a licence is a statutory requirement in a marina".

 

Hardly. 

 

 

 

 

It doesn’t contravene statutory requirements. It is outwith them. There is nothing in statute that says a licence cannot be required beyond CRT waters. Therefore it is not forbidden to require such. Also statutory law is only one type of law, it isn’t the only law.

 

You are right that CRT would have no recourse to the marina under their statutory powers and likewise CRT have no recourse to a moorer that is inside the marina since there is no direct contract between them.

 

If CRT notes that there are unlicensed boats in a marina the correct first course of action would be to write to them with the evidence reminding them of their contractual obligations. The marina’s response should be to write to the errant boat owners and ask them to licence their craft within a reasonable period of time and remind them of the consequences of not doing so e.g. non-renewal of contract or ultimately eviction.

 

I suspect CRT would be satisfied if they saw the marina were responding in the right way, at least initially. Probably the last thing they would want is to have to cut off a marina or take enforcement directly once a boat had been evicted - or voluntarily moved - from the marina onto a CRT waterway.

 

CRT cannot prosecute the marina, and neither CRT or the marina can prosecute a moorer. The ultimate sanction is to cancel the contract.

 

All of the above can legitimately happen outside of the direct requirements of the statue relating to CRT and would be supported by a court if push came to shove.

 

JP

 

 

Edited by Captain Pegg
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9 minutes ago, Captain Pegg said:

It doesn’t contravene statutory requirements. It is outwith them. There is nothing in statute that says a licence cannot be required beyond CRT waters. Therefore it is not forbidden to require such. Also statutory law is only one type of law, it isn’t the only law.

 

Sorry, can't handle reams of a post. One bloke at keyboard this end.  

 

Have you asked the EA about that. And, if there is nothing to say they can't, does it say it can enforce its authority anywhere it wishes? 

 

 

 

Edited by Higgs
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6 minutes ago, Higgs said:

 

Sorry, can't handles reams of a post. One bloke at keyboard this end.  

 

Have you asked the EA about that. And, if there is nothing to say they can't, does it say it can enforce its authority anywhere it wishes? 

 

 

 

Read the rest of my post one paragraph at a time and it would answer your question.

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Just now, Captain Pegg said:

Read the rest of my post one paragraph at a time and it would answer your question.

 

I can't spend that much time - sorry. 

 

It is very doubtful most haven't already cropped up before. 

 

 

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12 minutes ago, Higgs said:

 

I can't spend that much time - sorry. 

 

It is very doubtful most haven't already cropped up before. 

 

 

I only joined the discussion when you bemoaned the lack of quality of debate.

 

I’ll summarise my key point:

 

CRT have no statutory powers of enforcement in a marina. They have enforceable contractual powers in respect of the marina owner. The marina owner has enforceable contractual powers in respect of its moorers. These can legitimately be used to enforce licensing of boats in marinas outwith and irrespective of CRTs statutory powers.

 

I strongly suspect you now realise this to be the case but won’t acknowledge it.

 

JP

Edited by Captain Pegg
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12 hours ago, Higgs said:

 

That's pretty much how it works with the marina. No legal status, primarily because it doesn't have the power to enforce or demand you have a licence. It is not empowered by the government to act as CRT. And CRT cannot give it the power to act on its behalf. 

And nobody, apart from you, is saying that the marina is acting as CRT or using any of CRT's licence enforcement powers.

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12 hours ago, Higgs said:

Are you thinking that because the marina can ask a boater to have a licence that that also qualifies the marina as a legal entity of the enforcement powers. 

 

In fact, you're trying to say that a marina should be considered as an enforcement power - it ain't. And if it put itself forward as such, it would be fraudulent

 

No. I am thinking that the marina has none of CRT's statutory enforcement powers, and I am not aware of any marina which has claimed it has. What marinas are telling their moorers is that under the terms and conditions those moorers have agreed to, they must hold a CRT licence. Any moorers who do not have a licence are in breach of contract  and the marina's ultimate remedy is to evict them. That does not relate in any way to the statutory requirements or CRT's Ts and Cs in relation to the licence. 

 

 

 

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1 hour ago, Higgs said:

 

Moorers in a marina are mooring on private property. The marina is set up to allow people to moor there. There's no forcing some common rights issue. I can walk into a bar, in a similar way. The doors are open for customers looking for a particular service. The marina just cannot create a law around the service that they have no power over. 

 

Whatever the marina writes in its T&Cs, they cannot demand certain things. Some of the T&Cs, not worth the paper they're written on. The law governing the use of a licence will verify that they are not entitled to demand a licence. 

 

 

 

I am sorry to say it but you are plain (and plainly) wrong.

 

Whilst you normally dislike analogous arguments, you introduce bars. When I last checked my licencee requirements (I no longer hold a licence) publicans have every right to disbar anyone they choose. Since they are not subject to Judicial Review, they do not have to explain their reasons unless and until it is alleged that they have done so in a way that contravenes the Equality law.

 

Unfortunately the 'law' - highlighted in red -  does not specify what you suggest (unless you can cite the actual clause in a specific act) T&C's may not be enforceable as contrary to a statute but a party to a contract very definitely has specific rights when the other party fails to fulfil a freely entered into contract. Just as a marina operator can act against a moorer who fails to pay fees or stacks up rubbish in ways forbidden in the mooring contract, so they can ask you to leave if you fail on any other part of the contract, including the need to hold a licence (what you do with that licence is irrelevant to any mooring contract that I have seen). Statute laws regarding the use of a licence say nothing about the right or otherwise of a third party to require you to have one. No law entitles the marina to demand that you have insurance but they can and will still insist on you having it.

 

However, by implication, you do reasonably raise the point about enforcement. Anyone who has rights also has some recourse to enforcement. What they do not, however, necessarily have is an economically justifiable route to enforcement but there are a few specific limitations. For example, for the 'foreseeable future' the marina could not take action to evict you for non-payment of fees if the boat is your residence and you are there legitimately. Anyone in business who has held a contract which the other party has broken will know about the difficulty of enforcing it. For example, there may well be payment terms agreed but a small supplier is unlikely to feel it sensible to proceed against a large customer if they unilaterally impose adverse payment terms.

 

In any litigation it will generally be asked, "What do you want out of this?". I think it is becoming increasingly unclear what you expect the outcome of your campaign to be - or what would satisfy you? Perhaps it would help more rational debate if you shared that with the forum.

 

On the other hand, I am very grateful for you persisting with this apparently fruitless argument as it helps to fill the deserts of time which Covid-19 is imposing on us - even in the absence of it benefiting from statute that gives it permission to do so.

 

(Small side issue - at the moment my spell checker objects to Covid - how long before it catches up?)

 

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31 minutes ago, David Mack said:

And nobody, apart from you, is saying that the marina is acting as CRT or using any of CRT's licence enforcement powers.

 

You have picked up the wrong end of the stick.

 

People are assuming that the T&Cs of a marina constitute the enforcement power, as laid down by statute, just because a contract forces them to make an entry in the marina's list of T&Cs. CRT does not give the marina an option, the marina is not permitted to follow the statutes governing enforcement power. They have to follow a pseudo, contrived enforcement.

 

This has the effect of laying the burden and fear of retribution at the feet of the moorers. Through menace. 

 

 

22 minutes ago, Mike Todd said:

I am sorry to say it but you are plain (and plainly) wrong.

 

And I'm sorry. Keep it short. 

 

 

Edited by Higgs
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1 hour ago, Cheese said:

They can write whatever they like in their T&Cs, and (given that their customers accept them) unless/until some terms are ruled "unfair" by a court, they are sustainable under contract law.  It is no different to saying things like "no dogs" (or "dogs mandatory").

 

Yes, those terms are primarily in pursuit of a business proposition.  But that is what business is all about - coming up with T&Cs that are of mutual business to both business and customer.  Potential customers who don't like the terms of a particular business go elsewhere.

Agreed, so in the earlier example, the marina operator in consultation with CRT agreed it was not reasonable to require a mooring agreement where the mooring connects to non crt waters to have a clause requiring a crt licence, and this clause was removed, however where a marina is connected to crt waters, crt view the requirement to hold a licence as reasonable and so in those cases the clause stands.

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1 minute ago, Chewbacka said:

Agreed, so in the earlier example, the marina operator in consultation with CRT agreed it was not reasonable to require a mooring agreement where the mooring connects to non crt waters to have a clause requiring a crt licence, and this clause was removed, however where a marina is connected to crt waters, crt view the requirement to hold a licence as reasonable and so in those cases the clause stands.

 

The licence is attached to a managed section of water, deemed the responsibility of that authority. It ends at the entrance to a marina. 

 

 

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4 minutes ago, Higgs said:

 

The licence is attached to a managed section of water, deemed the responsibility of that authority. It ends at the entrance to a marina. 

 

 

We all know that, what is your point?

 

It is very simple, if a marina operator wishes to connect the marina to CRT waters, it is a condition of the connection agreement between the marina and CRT that only licensed boats may moor in the marina.  If the marina operator does not agree or enforce that clause with the boats in the marina, then CRT will declare the connection agreement void and close the connection.  What don’t you understand??

Edited by Chewbacka
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1 minute ago, Chewbacka said:

We all know that, what is your point?

 

Well, you used the word reasonable, in the post I replied to.  That would seem to be subjective. You have your opinion, as to what constitutes reasonable.  

 

 

 

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1 minute ago, Higgs said:

 

Well, you used the word reasonable, in the post I replied to.  That would seem to be subjective. You have your opinion, as to what constitutes reasonable.  

 

 

 

Actually in a contract dispute it is the arbitrator or courts that will make that decision, does not matter what you or I think is reasonable.

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1 minute ago, Chewbacka said:

Actually in a contract dispute it is the arbitrator or courts that will make that decision, does not matter what you or I think is reasonable.

 

Sounds reasonable. I'm arguing one law against another, I know which one I think takes precedence. 

 

 

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44 minutes ago, Higgs said:

People are assuming that the T&Cs of a marina constitute the enforcement power, as laid down by statute,

I certainly don't assume that, and I'd suggest that there would be very few that think the marina has 'statute powers'

 

In a similar 'market' - we have certain conditions in our contracts for having a 'mobile home' (static caravan) on our Park.

 

No dogs

No Children

No business to be conducted from the site

3rd part insurance compulsory

Fire extinguishers must be serviced in accordance with requirements

Gas boiler / equipment must be serviced annually.

 

We don't have any statutory requirement to impose these (and other) conditions, there is no law saying the Home-Owner must have them, they have a choice. Comply with the rules and stay on site, or, leave.

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54 minutes ago, Higgs said:

 

You have picked up the wrong end of the stick.

 

People are assuming that the T&Cs of a marina constitute the enforcement power, as laid down by statute, just because a contract forces them to make an entry in the marina's list of T&Cs. CRT does not give the marina an option, the marina is not permitted to follow the statutes governing enforcement power. They have to follow a pseudo, contrived enforcement.

 

This has the effect of laying the burden and fear of retribution at the feet of the moorers. Through menace. 

 

 

 

And I'm sorry. Keep it short. 

 

 

Which people other than you assume this?

 

Everyone here is acknowledging that those T&Cs are outside of the statutory powers relating to CRT controlled waters but perfectly enforceable under general law. As are any contract terms that do require statute law to be broken or until a court deems them to be unreasonable (under the statute governing such).

 

5 minutes ago, Higgs said:

 

Sounds reasonable. I'm arguing one law against another, I know which one I think takes precedence. 

 

 

I don’t think you have sufficient knowledge to understand your own argument. There is no conflict or choice here.
 

JP

Edited by Captain Pegg
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1 minute ago, Alan de Enfield said:

I certainly don't assume that, and I'd suggest that there would be very few that think the marina has 'statute powers'

 

In a similar 'market' - we have certain conditions in our contracts for having a 'mobile home' (static caravan) on our Park.

 

No dogs

No Children

No business to be conducted from the site

3rd part insurance compulsory

Fire extinguishers must be serviced in accordance with requirements

Gas boiler / equipment must be serviced annually.

 

We don't have any statutory requirement to impose these (and other) conditions, there is no law saying the Home-Owner must have them, they have a choice. Comply with the rules and stay on site, or, leave.

 

Not something I'm disputing. Is your business being forced by another business to impose those? 

 

 

5 minutes ago, Captain Pegg said:

Which people other than you assume this?

 

Everyone here is acknowledging that those T&Cs are outside of the statutory powers relating to CRT controlled waters but perfectly enforceable under general law. As are any contract terms that do require statute law to be broken or until a court deems them to be unreasonable (under the statute governing such).

 

JP

 

I'm not assuming they have, that's the point of my argument. I'm assuming they have no authority to impose. 

 

 

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1 hour ago, Higgs said:

People are assuming that the T&Cs of a marina constitute the enforcement power, as laid down by statute,

 

Are they? What is your evidence for that? I would have thought that the majority of marina moorers understand perfectly well that having a licence on the canal is one obligation, and that having the same licence in the marina is an entirely separate requirement.

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4 minutes ago, David Mack said:

Are they? What is your evidence for that? 

 

Peoples' insistence that they believe that to be the case. 

 

 

4 minutes ago, David Mack said:

I would have thought that the majority of marina moorers understand perfectly well that having a licence on the canal is one obligation, and that having the same licence in the marina is an entirely separate requirement.

 

Would you. 

 

 

 

Edited by Higgs
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6 minutes ago, Higgs said:

 

Peoples' insistence that they believe that to be the case. 

 

 

 

Would you. 

 

 

 

People believe many things, doesn’t mean they are correct.

Some people believe the earth is flat, others that Trump is a stable genius, and even some that CRT have enforcement powers within a private marina.  They are all wrong.

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6 minutes ago, David Mack said:

Which people?

The evidence from posters on this and similar threads is that people understand the distinction perfectly well.

 

Yes, I understand the difference between a statutory requirement, and a figment of a marina's T&Cs, and the business contract that it secured.

 

 

Edited by Higgs
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